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tv   The Rachel Maddow Show  MSNBC  May 3, 2022 1:00am-2:00am PDT

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always had an interest in the court. it's sort of a resting moment, because the code of a maritime on that institution is so strong, and so powerful, the both the substance of what is being leaked, here in the both the substance of what is being leaked here and then the communicative signaling happening in the fact of the leak is a very, is almost sort of emotional at some deep level because of what it signifies. >> yeah, and i mean when you're just speaking with erica, you booked her today to talk about the new reporting that republicans in washington have been debating and planning, on proposing a nationwide abortion ban, you know, a six-week abortion ban which is effectively a complete ban on abortion in the united states, and if this ruling is going,
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we're going into a midterm season, where the republicans are poised to take the house and the senate, then, you know, president biden is still president biden and he will presumably veto such a measure, but in the event that we have a republican president in 2024, that's where we'd be. we would be in a south america style nationwide abortion ban in america. >> just to be clear, it would be, and i can't know the future, you and i think agree, it would be the first bill, it would be the first bill, it would be hr-1, and it would be s-1 in the senate. and i don't think it would be any question that it would be the first bill in a republican trifecta in a post-roe landscape, no question. >> and the fact that it is being leaked, despite this is leaked now, we will have the ruling before the november election. i mean this is like a four number sodoku, this is not a
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hard puzzle, in terms of figuring out the stakes in november, in terms of the midterms, putting whichever party in the house of congress will among other things determine whether or not we are about to become a country that bans abortion nationwide. >> we should note and obviously this is something you have reported on as well as anyone on all of television, there's, i think, 25, 26 states that have trigger laws such that when roe gets struck down, abortion becomes illegal at that moment, that instant, and this is not a process that plays out, and you could be living in the state of washington, as a pregnant person, planning on getting pregnant, where the day, the afternoon this happens, your state law says, the ruling of the court means that abortion is now illegal after this time line in your state. >> and as we've seen abortion politics, particularly republican-controlled states, get harder and harder and harder line, in very, over a very short
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time line, after they got closing that a ruling like this is likely coming, we have now started to see, there used to be a taboo on saying that the doctors would go to prison and they're saying yeah, the doctors, they're not talking about this lightly, the doctors will go to prison but even more acutely, there used to be, until very recently, there was a taboo on saying that a woman raising a child who was raped or the victim of incest, at least they wouldn't be forced by the government to give birth against their will, to carry that pregnancy, to term, and give birth against their will, that increasingly and girls pregnant at the result of rape and incest, those exceptions are disappearing, one by one, with each passing week, every time a republican legislature takes up this issue. and so we're now at the precipice of something that has become a much more extreme prospect, becoming exceedingly likely, the radicalism and the practicality are speeding toward
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the same place. >> that's right. oklahoma, which signed its law very similar to texas, just a little bit ago, ohio, proposing legislation, in fact there was, you know, just a viral sound from the state senator and talking about why it is okay why a woman who is a victim of rape or incest, 14 or 15 yields old, 14 or 15 years old, the state to force that person to carry the pregnancy to term and something that many people have worked against and fought against and worried about for a long time and you have covered this topic as well, many on television by far, and it's, it was not surprising for people to follow the court, this was not the outcome that people thought, people listened to oral argument, the fact that they specifically asked to overturn roe, which they didn't have to do. the chomping at the bit that happened at oral arguments from the justices. who clearly wanted to go for the
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apple. none of that is surprising but to have this draft opinion on the internet is shocking. >> it is shocking as you said and as we started discussing here, it is shocking both in substance and also shocking in terms of what it means about the court, and what it means about the stakes here that someone was willing to do this. it is just a remarkable thing. chris, thank you for handling as legitimately breaking, sort of overwhelming breaking news. i'm going to pick this up right now, including with the reporter who just broke this story. thank you, my friend. >> thank you. before i bring on josh, the reporter who just broke this story at "politico," let me just summarize once again this breaking news that chris hayes and i are both doing our best to respond to. the headline at "politico".com right now, breaking in the last few minutes is this, united states supreme court has voted to overturn abortion rights, draft opinion shows. according to an initial draft majority opinion rin by justice samuel alito, circulated in the
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supreme court and "politico," strike down the landmark roe v. wade decision, the draft opinion is a full unflynning repudiation which guaranteed constitutional protections of abortion rights and a subsequent 1992 decision, planned parenthood v casey which largely maintained the right. roe was egregiously wrong from the start. we hold that roe and casey must be overturned. it is time to heed the constitution and return the issue of abortion to the people's elected representatives. which as chris was mentioned, which means returning it to the states and then more than two dozen states, what are called trigger laws, which would immediately render abortion a crime, immediately upon the supreme court issuing such a ruling. as josh reports along with his colleague alexander ward at "politico" tonight, the immediate impact of the ruling would be to end a half century
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guarantee of abortion rights and to allow each state to restrict or ban abortion and is is unclear if there are subsequent changes to the draft, this draft ruling obtained and published by "politico" tonight, reportedly drafted in february. "politico" received a copy of the draft opinion quote from a person familiar with the court's proceedings in the mississippi case. the abortion case. along with other details supporting the authenticity of the document, the draft opinion runs 98 page, the document is replete with citations to previous court decisions and 118 footnote, the appearances and timing of this draft are consistent with court practice. the exposure of the majority opinion is a rare breach of supreme court secrecy and tradition around its deliberations. joining us now is josh gersstein, the senior political affairs reporters for "politico," he broke the story tonight along with his colleague alexander ward. josh, thanks for coming on, on
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such short notice, i realize four minutes ago you would be on tv talking with me about this on tv tonight. >> no problem, rachel. >> i will not press you on the sourcing but i want to press you on your confidence nur sourcing. obviously this is a very unusual if not completely historically unprecedented week, a document that purports to be the draft majority opinion of the supreme court before they had issued any such ruling, can you just tell us about your confidence in the authenticity of the document. >> well, we're very confident in the authenticity of this draft majority opinion, rachel. both in the way that we obtained it and other information that we got that supports its authenticity and makes us believe that it is genuine. now, of course, it is not a final opinion. it's a draft opinion. it was circulated in the court as a first draft by justice alito in february, dated february 10th.
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so it is possible there had been some changes since then but it is our best understanding at least where the court stood at that time which is about two and a half months after arguments in this pivotal mississippi abortion case. >> you report, josh, and again, forgive me if i get these details wrong, as i am learning this as we're talking about it but you report that the court majority here is established, that there are at least in the initial conference between the justices after the arguments, there were five votes on justice alito's reported side here, and the only ambiguity, the only question is whether or not justice roberts would make it a 6-3 decision or a you a 4 5-4 decision if he sides with the more liberal members of the court. what you can tells about your reporting about the numbers and how the two sides align and whether that is a matter of some fluidity.
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>> it is our understanding from a person familiar with the proceedings that justice alito believes and that the court has five justices that are essentially aligned with this opinion that he's written, which is, you know, just a withering takedown of the roe v. wade precedent. it pulls no punches at all. it is pretty brutal. and the way it is structured, it kind of needs to be that way, because of the way alito confronts this issue of court precedent, stair decisis is the legal team and something has to be really wrong if they want to overturn it and that's the case that justice alito makes here. there is still some ambiguity about where chief justice john roberts stands, as many people noted at the oral arguments at the beginning of december. it sounds like he was trying to find a way to approve the law, which is a 15-week abortion law without completely ripping down
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the roe v. wade precedent. our understanding is most of the republican colleagues want to go ahead and take down roe v. wade. and that said, we're at the beginning of may and the decision will not likely be published the until the end of june, maybe beginning of july so it is fair to say that it is a situation that is unresolved at this point and i can't promise you that various things may not change between now and late june. >> josh, in terms of the substance of this opinion as written, again, this draft majority opinion, and with the caveat that this is an historically unprecedented leak of what appears to be a draft majority opinion from the court, before ruling on the issue, with the caveat that you described in terms of whether or not this may go through potential changes and potentially substantial changes before we see the ruling from the court as published later this year, with all of those carve caveats intact, when you look at what justice alito wrote
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here, how does this comport with the issues in the case, obviously as you have been describing, the leanings of the justices on the matter, i think to a realist-minded observers were clear even before oral arguments and certainly were clear thereafter, but i think it was also perhaps still common wisdom that the justices would try to soft petal this a little bit, that they would try to undermine roe, effectively remove the protects of roe, without a sort of 21-gun salute, which is what this appears to be, in terms of the way that you've been describing justice alito's thinking. >> is that a fair assessment of this? that this is more of a bludgeon, when it was perhaps expected to be something more of a more subtle approach? >> it's definitely a swing for the fences draft majority opinion. he's really holding nothing back here, justice alito, and i know what the conventional wisdom
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was, the court would try to soften the blow, but after the arguments there was precious little indication of that from any of the republican-appointed justice, other than really chief justice roberts. and another reason to think that this may have full support from all of the republican-appointed justices except the chief is if you go through the opinion, you'll find echos in there of views that other members of the court have stated on previous occasions. there are parts of this opinion that sound a lot like justice clarence thomas, when you read through it, you'll see on a few occasions the word abortionist appears in this opinion. that's a word that justice thomas has taken to using in recent years. and that most of the other members of the court don't typically use. and there's another facet that seems to cater to some comments that justice amy coney barrett made at the oral arguments about the way of views of unwed pregnancy out of wedlock births and women's rights have evolved
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since the roe v. wade was handed down in 1973. so it really does seem that alito is trying to cobble together a majority, and people can look at it and see how much it does to address the concerns chief justice roberts has raised about the credibility of the court and the concern about public opinion. i think there are portions in it that don't seem to give full weight to the chief's concerns which also supports the notion that maybe he is not expecting to be a part of this opinion. >> josh, in terms of the likely impact of a ruling if it does in its final form look at what you have reported and published tonight, if we had a republican-controlled house and a republican-controlled senate and a republican in the white house, is there any line in this ruling, as you read it, that would prevent the legislature and the president from establishing a new law that full
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out, full on banned abortion in its entirety in every state in the country in every instance? >> well, it's a draft decision and it doesn't really get into the issue of what the federal government's power i think would be in this area. so i think it certainly leaves that open, as a possibility. there might be other obstacles to that, like the legislative filibuster we still have, at least for the time being, in the united states senate. but there are points at which alito tries to suggest that this won't bring all of the scenery down, that we move away from abortion to other privacy-based rights such as contraception right, like gay marriage. he does try to ring fence this opinion and say all we're talking about is abortion. he mentions that several times. and he suggests that it shouldn't be stretched into other areas. that said, i'm old enough to know that the court many times has said don't try to apply our opinion on x, to the situation
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y, because it's different, and yet it often does get applied that way. but there's no question, he's trying to keep this confined to the issue of abortion. >> and of course, that's funny, that's telling itself, right, that you would be willing to say, it's just about abortion and not about anything important, don't worry, tells you the frame of mind of, the frame of mind behind people who would make this kind of a change. let me ask you about one last piece of this, josh. since we've been on the air, since we received your reporting tonight, since you published, we, on my show, have contacted four former clerks for supreme court justices, all of whom uniformly told us that the document that you published tonight appears to be a legitimate work product of the court, meaning it just matches in form, style, and texture of the kind of product that they as clerks were used to seeing as a draft majority opinion.
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that highlights in itself i think the unique nature of this reporting that you have done, and this leak, and i wonder if you have any reflection on what it might mean for the credibility of the court, for the legitimacy of the court, for a draft majority opinion to have made its way into your hands. this is something that has never happened before in the history of the court. and as a court observer and somebody who understands how the court fits into our politics, what sort of impact do you think this will have on the court itself? >> well, i mean, there have been leaks out of the court before, perhaps not of this magnitude, but we have all gotten kind of used to on these big decisions such as obama care, such as this abortion decision, to hence, body english i might call it, there is a nuanced reading of editorials that appear in
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different places, places like "the wall street journal" editorial page, where you can often see indications that maybe the court is ruling one way, and conservatives aren't happy about it, and you do see that kind of dialogue. but never accompanied by an actual opinion. so i do think that this is ground-breaking. and it does take the court into new territory. it would certainly be very interesting to know what chief justice john roberts thinks about this, even if he doesn't agree with its opinion, what does he think about whether this, the court could be viewed as political institution, by some people. that's what we're going to have to see how it plays out over the next couple of months. as this continues to resonate towards the final decision. >> and the importance of chief justice roberts' opinion on matters like what is not just, you know, what he thinks as a person and how it affects him personally, it is that the court is effectively a self-regulating
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body that sets the standard and if this is going to go shake the foundations of the court, the court and its perception, and its role in politics, his opinion will be more important than anybody else's by a considerable margin. josh gerstein, senior legal affairs reporter for "politico," you will always be the reporter who broke this story. whatever else happens in your life and everything else you have done in the past, i know this is a really big deal and i appreciate you being here with us tonight. thank you. >> thanks so much, rachel. take care. >> all right. i will just mention, let me just restate what it is that we're talking about here. josh gerstein reporting you just saw for "politico," along with his colleague alexander ward, has just broken this story, this remarkable story, at politico.com. the supreme court has voted to overturn abortion rights, draft opinion shows. the fact that a draft opinion from the united states supreme court is in front of us is itself, as far as we know, an unprecedented thing. there have been leaks in the
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past, as josh just mentioned, about what has happened during discussions along the justices, among the justices about what may or may have not gone down in the room before where the justices sit on the dais, as we see from sketches and we have seen description of those discussions in the past. and we have as far as we know, a written in this case 90-plus page draft majority opinion released to the public through a reporter before a ruling was actually issued. we don't know anything about who the source is. josh who you just heard him speak in his own words about why he and his colleagues and his editors are confident in the sourcing of this matter. obviously an earthquake for all stain tive reasons. i will tell you in terms of the confidence in the story, we have spoken with a number, four different supreme court, former supreme court clerks in the last few minutes who say they agree
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with josh and his colleagues at "politico," that it is a work report, whether or not it is revised before it is ultimately published. the bottom line here is that this is, this would appear to be the day that, i mean i was born in 1973, which is when roe v. wade was passed, in my entire life, women have been talking about the day that this will come. and that roe v. wade could be overturned and that the united states would become a country in which abortion was treated as a crime. and it was the government, was the state, that is allowed to decide whether or not men give birth, it is the state that is allowed to force women to bring unwanted pregnancies to term, even if they, for the world's most, greatest reasons, don't want to do it. putting the government in control of women its lives in this way -- of women's lives in this way changes something fundamental about who we are as a country and who we are as a
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culture and who we are as men and women, and if this change is coming not as a sort of feathered in set of reforms designed to ultimately underline and make it less available and even over the course of this year as republican controlled states are reviewing these policies and the courts are letting them do it and if they're instead knocking it out and abortion is going to be illegal, and every state will make it happen on their own terms and the "washington post" reported this morning, with this next headline, the next fron fear for the anti-abortion movement, a nationwide ban, the "washington post" literally reported this morning that leading abortion groups and allies in congress have been meeting behind the scenes to plan a national strategy that would kick in if the supreme court rules on abortion rights this summer including a push for a strict nationwide ban on abortion if republicans retake power in washington. that was the news this morning. they are working on a nationwide abortion ban to make it a crime, coast to coast, everywhere in the country, as soon as they got
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power, as chris hayes just noted a moment ago, it would be hr-1, senate bill-1, if the republicans get back in power, how does that pair with the draft opinion that the supreme court is about to clear the way, just for that, means that we are on the precipice of becoming a very different country, and our daughters and granddaughters living in a very, very different world. we'll be right back with much more on this breaking story. stay with us. h us
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we are continuing to react to the breaking news tonight, broken by "politico," politico.com, josh gerstein and alexander ward, a remarkable development, a draft majority opinion apes to have been leaked from the united states supreme court. -- appears to have been leaked from the united states supreme court. this has not appeared before at least that we know of. the way that these things work notice united states supreme court and i have never been a clerk, i only have a layman's understanding of these things but part of this is described in mr. gerstein's and mr. ward's
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article tonight and part of it we know from covering so many consequential supreme court decisions over time, is there are orth arguments that happen in -- oral arguments that happen in front of the justices, and we've all heard about them, and maybe on a class trip we have heard them in person, and we know the oral arguments, after they happen, the way the process usually work, the justices get together and they hold effectively, preliminary votes, think i'm going to go yes, i think i'm going to go no, and based on what they cobble together as what they believe is the majority in the case, and a justice is assigned to write a draft majority opinion. now, that draft majority opinion is just a draft. it will likely change. we expect, just like in any kind of work, something you write months before goes through a number of iterative processes
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with your colleagues will change, and the draft is dated february 10, 2022 from justice alito, circulated to all of the other justice, it is described as a first draft, and it is a double barreled shock. it is a double-barreled elimination of the right to have an abortion in the united states. it says bluntly, on page five, we hold that roe and casey must be overruled. the casey decision was an important supreme court precedent that essentially strengthened and upheld the basic tenets of roe and made it more practical in terms was way it was implemented and constraining a state's ability to ban abortion. this doesn't just overturn roe, it overturns both roe and casey, we hold they must be overruled, the constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision. one paragraph down from that, it says quote, stare decisis, the
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doctrine on what the casey ruling is based does not compel unending adherence to roe, the decision has had damaging consequences. if in fact this ruling survives, to see the light of day, which is no reason we expect it won't, at least in substance do so, from what we understand from mr. gerstein's reporting tonight, this would have the effect of enacting what are so-called trigger laws in more than two dozen states in the law, more than two dozen republican controlled states would immediately ban abortion upon the publication of this ruling. it would also open up the prospect for what the "washington post" reporter just today is being discussed by republicans at the national level, which would be a nationwide strict abortion ban. again the "washington post" reporting just this morning that that is the priority for the entire abortion groups and republican members of congress now, if given the leeway to act,
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by the united states supreme court, they would seek a nationwide abortion ban, we're starting to see republicans in states around the country drop their previous taboos around this issue, they used to say if a woman was raped, well the government wouldn't force a rape victim to bear the child of a rapist, and they're starting to drop the exceptions and starting to drop incest exceptions and dropping exceptions of save the life of a mother and if those exceptions are dopd, and republicans are talking in the states, if there is no exception to protect the life or health of the mother, that is a situation in which the force a woman to give birth even if it killed her. again, this is a surprise both in style, but also in substance, in terms of how blunt this is. we are joined by the senior editor of slate magazine, writes about the case and the host of
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the amicus podcast. i want you to tell me if i said anything wrong thus far and i want you to tell me what your opinion is. >> no, i think you've said it right. i think josh used swing for the fences and this is both swing for the fences in terms of justice alito's rhetoric, and language, as you noted, this is not a milquetoast opinion. this is just going for broke. it is also a swing for the fences in terms of the way this happened. we have never, ever, ever seen a 98-page draft opinion, or heard about deliberations, who's writing, every piece of this, rachel is astonishing and you almost can't let the one astonishing thing, which is the substance of this draft opinion, overmask the other astonishing things, which is i guess all bets are off now at the court and norms and traditions that
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have stood intact for centuries, if not for decades, are gone. and now, we just leak opinions. >> well, let me ask you about the substance of that, because i think a lot of americans hearing this news right now, maybe from watching the show right now, are gobsmacked by the revelation that, yeah, we might have heard it was coming, we might have heard the warnings, but this means that the government is going to force women to give birth now. this is going to make abortion illegal in most of the country. in much of the country instantly and potentially all of the country soon. i think most people are very gobsmacked by, that but i think you rightfully point out that this is being something important in terms of the rule of law, in terms of our system of government, we got the executive branch, the legislative branch and the judicial branch, and the judicial branch headed by the supreme court which is a self-governing institution, which does not have external ethics rule, for example, that the justices, police themselves, they set their own morays and tradition, a somewhat secretive
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body, certainly a small one, the smallest of all branches of. if, like you say, all bets are off and draft opinions get leaked now and the procedural shock that we've got tonight also takes hold, what's consequential about that to us as americans? >> i mean i just think it is a last bastion of how the court, as you said polices itself. i mean we did not see leaked drafts in bush v gore. we did not see leaked drafts in the first obama care. i mean not, it is just not done. we certainly heard whispers occasionally but even that i think was never reliable, and so when you're getting, as i think it's important to say, this is a first draft, and it's important to think of that as sort of a first bid, right, this is presumably going to get honed and refined, and you know, people may be put off by some of
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the sharp language in here. this is clearly justice alito's, giving a little something to justice barrett, giving her the sort of safe haven concerns she had about dropping babies off at fire stations, and the eugenics claims that those are very near and dear to justice thomas' heart, so he's dumped it all in here, and presumably not all of the justices, we again don't know what chief justice roberts is thinking there is a huge john roberts shaped hole in this opinion but i would think this presumably gets buffed down somewhat, but i think if it is in fact the case, that the longstanding norm conducting how clerks conduct themselves and justices conduct themselves, which is we don't have leaks at the u.s. supreme court, if that's gone, then it's really, really very hard to see what other rules they would be using
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to conduct themselves, because this is just, as you said, a gobsmacking turn of events and it is very, very clear to me, that it is not the leak, that people are talking, and that this is clearly being done, we don't know by who, to either soften the blow or kind of inflate the blow of what is coming in june, and so i think it is being done for truly political reasons. which also goes to your question about rule of law. a court that cares about its appearance, as an institution that is above politics, just threw caution to the wind and made a determination to do the most brazen political act that i've ever seen. >> i keep thinking about a recent article that was published about the kind of new, new rights, land is happening in terms of eks entrick, right wing
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fashionist billionaire, peter kiehl funding republican candidates and think about that article recently in "the atlantic" and the moment where jd vance, who is ohio senate primary is tomorrow, speaking on a podcast, talking about what kind of politician, and he says, at one point, he says that part of the reason he wants trump to run again and win again in 2024 is he thinks if trump gets in, there he should fire every single federal government employee in the entire country and just fire them all at once. and he acknowledge the that there are, there are legal protections for a lot of people in those jobs and so that sort of thing mass firing which is a right wing fantasy for a long time, that would be illegal, and jd vance sort of speculates that, you know, and of course that would go the court and it would get to the supreme court and rule against him and pull a andrew jackson, the chief
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justice has made his ruling, now let him enforce it. and that is again sort of a right wing man on a white horse fantasy about the kind of government and the kind of governing that they want. but it also shows that the court isn't in a safe position from the right, right now, and it's i think come under really serious scrutiny from the left, in terms of the ethics issues surrounding particularly clarence thomas, justice thomas and his wife and her involvement in political issues related to cases before her husband and the court. the legitimacy of the court is just an 5:00, isn't just an academic thing. it is a question whether or not their rulings are followed and if they don't, they don't have a police force to implement these things. it does feel like this, this gets us closer to that edge, too. is that fair? >> rachel, the court started this term, the first monday of october, with the lowest approval rating since gallup has
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been polling, right? so depending on the poll, it was the high 30s, the low 40s, and i know that seems astronomically high, compared to other branches of government, but it's catastrophically low for the court and it's thrust substantially in a compressed amount of time. and i think the think that we have to think about, when justice alito or justice gorsuch or justice barrett says don't criticize the court, because you're undermining the legitimacy of the court and when you hear the court say don't impose ethics rules and standards on us, don't force us to have mini recusal rules, what they're saying is don't criticize the court, because you're undermining the court and i think your point here is so important, which is that the court is undermining the court, whether it's the shadow docket, as we said, the ethics violations, whether it's reaching out to take cases that are not before it, and there's a whole litany of things that the court has done, you know, really short amount of time, that it is horrifying, objectively, anybody
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who cares about the court, and maybe i'll just end with this, because i think it is really important. there is a nontrivial chance that the 2024 election goes to the court. and the idea that progressives and democrats want to undermine the court because they want the court to come down with a decision we can all ignore is chilling, because as i've said many times, there is no plan b if we ignore the court. plan b is the army. it's not good. so we want to have a court that has neither the first nor the, neither the purse nor the sword, right, that is the federalist papers but has republican respect and regard and when the court is working really, really hard to undermine that, it is awfully hard to say that this is anything other than a, it self-inflicted wounds and b a self-inflicted wound that is going to be to the benefit of absolutely nobody when the rubber hits the road.
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>> dalia lithwick, senior editor of slate magazine, thank you for your opinion as we continue to look at the breaking news and i know it is hard to talk about something when we're absorbing it and none of us had a chance to read the 98-page opinion and the 30-page appendix before air. thank you very much. >> thank you. one of the members of congress who is most qualified to talk about this matter, specifically because he is an esteemed constitutional scholar, maryland congressman member of the house judiciary committee, congressman jamie raskin, was booked to be here tonight to talk about the january 6th investigation and other matters before congress, but congressman, i have to start tonight at least by talking to you about this breaking news. thanks very much for joining us. >> sure, i'm delighted to be with you, rachel. >> have you had a chance to look at mr. gerstein's reporting in "politico," or at all, at the ruling that has been published tonight from the court? >> yes, i just sped read the decision. i found it astonishing and
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appalling. the basic legal claim here is that the word abortion doesn't appear in the constitution, and of course, it doesn't appear in the constitution, but the supreme court in 1973 in roe v. wade hinged its reasoning on griswold versus connecticut, which was a 1965 decision by the supreme court, striking down a law banning birth control, even for married couples, in connecticut, and the supreme court said that the due process liberty clause includes the right to privacy over intimate decision making. so the point is that justice alito's decision would apply also presumably to the right to privacy in contraception, and we know of course, there is a right wing war on contraception now, but if casey is to fall, if roe v. wade is to fall, then griswold versus connecticut presumably is to fall as well, because of the word
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contraception or birth control, doesn't appear in the constitution, indeed, the phrase right to privacy doesn't appear in the constitution, so this would appear to be an invitation to have, you know, handmade's tale type antifeminist regulation and legislation all over the country and all of that is perfectly in keeping with justice alito's opinion, which admittedly i just read in like the last 20 minutes. but to my mind, it situates the trajectory of the american right in, where, you know, fox news and tucker carlson want to go, which is to make us in the image of hungarian ill-liberal democracy now, to keep elections going where people can be whipped up about various scapegoats but to carve out and destroy the freedoms and the rights of the people. and that's where the right wing seems to be going with this
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decision, and the supreme court, if it actually goes through, with this majority draft opinion, would somehow leaked out, and does look to me completely real or at least an extraordinary forgery of what a supreme court just decision by justice alito looks like but if it does go forward with it, i believe that the court will have returned to its historic baseline of being a reactionary conservative institution, to the far right of everything else at the federal level, in the government, and you know, it's still got this lingering fake halo around it from the warren court period, brown v board, roe v. wade, miranda versus arnz, and for much of our history, take all the way up to the civil war the supreme court for example never did anything for enslaved americans other than to cement and constitutionalize the
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system of slavely in the dred scott decision and declare that african americans have no rights that the white man is bound to respect and declare that the constitution is indeed a white man's compact and then even after the civil war and reconstruction amendments the court articulated american apartheid in plessy versus verge ferguson, approving jim crow arrangements throughout the country and the brief period with the warren and with the rehnquist court and the roberts court, the supreme court has returned to that traditional baseline, and all it means to me, at least in my mind, admittedly, speaking as a person in politics, but we need to turn out the vote like we've never turned out the vote before. the people need to stand up and defend democratic institutions and the rights of the people because the supreme court is certainly not doing anything for us. >> congressman raskin, let me
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ask you a question that i posed to josh gerstein who broke the story at the top of the hour. from the ruling the way it is written and again this is a caveat, what appears to be a first draft opinion, and it will likely go through many other iterations, and lots of changes, before we ultimately get the ruling, but based on what we've got, this remarkable leak of a first draft, and the way that justice alito has constructed this argument, if this survives in, if this mostly survives intact, is there anything here that would prevent republican-controlled states, or indeed a republican-controlled congress, and a republican president, from outlawing abortion full stop in every instance, making it a crime that, you know, put doctors in prison, potentially put women in prison, is there any new restriction on the ability of the government to force women to give birth that is recognized here, or is it an elimination
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entirely of that restriction? >> it is an elimination entirely, as i read it. i mean the good thing about roe v. wade, or planned parenthood versus casey, which that it established balance between the liberty of the woman to seek reproductive health care in consultation with her decision, and her family, it was a private choice, it was not up to state legs laters and to members of congress. but there was a balancing tactic, against the developing fetus, and so that at a certain point, under roe v. wade, for example, in the third trimester, it could be banned entirely, and the decisions to be regulated, in the interest of maternal and fetal health in the second trimester. but this abolishes the balancing test entirely, and says because abortion is not mentioned in the constitution, and presumably there is no right to privacy, according to justice alito, the legislatures can do whatever they want.
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so look, i serve on the judiciary committee, and the oversight committee, we've had lots of hearings about this. the same right wing lawyers who filed all of these case, and are always filing the amicus briefs, they don't take the position that there's any kind of balancing. they say it's perfectly fine for the legislatures to prohibit the procedure entirely, including in cases of rape of the woman, including in cases of, you know, problematic medical issues that might come up, they say that is up to the state legislature. so if there is a move on right now, to pass a federal law that would categorically prohibit abortion, the only thing stopping them from doing that, will be the votes in the house, and the votes in the senate, and the potential veto of the president of the united states. because they don't see any injures jurisprudentialle im
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medment to doing that. >> jamie raskin, a constitutional scholar, congressman, thank you very much for being here, i know we had to change gears quickly and i appreciate you reading it and joining us in such short notice. >> thank you. i will take a rain check on january 6th. >> we'll have you back. and it is nice to see you tonight. thanks for being here. >> thank you. we have been absorbing this developing news, as it has happened, we only had this information for about an hour now and let me ask if anything that you heard us discussing seems wrong to you or if you think we missed anything important in terms of implications here both obviously stunning for court watchers and those thinking about structure of government to have a draft opinion like this leaked out of united states supreme court, and then there is also the subsequence of what this opinion shows as congressman raskin was explaining which appears to be opening the door for abortions
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without any limbs. >> everything i know about the court says to me that this opinion is a legitimate true opinion, it's not some sort of deep fake, it looks lick a court opinion, it cracks like a court opinion, it talks like a justice alito opinion, so i think what you've been saying is absolutely right. put starkly, this is the hugest setback for women in decade, the hugest stepback for reproduction in decades, and profound consequences and one thing that i don't think is expressly mentioned is the telling fact about the alito draft opinion. the mississippi law that it up holds has no exception for rape or incest, and this draft opinion by the supreme court says that is a-okay. so you can have now a flat ban on abortion, if this opinion becomes the law, in any state or as you were saying before, the federal government. and so it is both in terms of abortion, but also kind of the
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brazenness that the court majority and again, it's still a tentative opinion and we can talk about that in a minute, but the brazenness by which it is overruling past decisions. remember in 1992, it was three republican justices, o'connor kennedy and soughter and saying roe might be right, it might be wrong, but we can't overrule it because thing have crystallize and it is important to the court's legitimacy and that was blown off by the draft opinion. >> and you suggested that this opinion would change and that's often and over time things change with the first draft to the final and what you know about the court, and thinking about what dalia lithwick said earlier that the rough edges might be buffed off, do you think there is any chance that it might not be the position and do you think that it will end up what four justices believe and not five and therefore it won't be the majority ruling. >> there is always that
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possibility. hope springs eternal but i guess i disagree with dalia a little bit because she was speculating that chief justice roberts would change his opinion, or vote with the dissenters or something. but the key thing here is that chief justice roberts' vote is now irrelevant. it is justice alito plus the four justices to his right, besides chief justice roberts, who you need to flip kavanaugh or gorsuch, or thomas, and that is just, you know, or amy coney barrett, and that is a pretty unlikely thing given the tenor of oral argument. so the process is the case was argued in december, the justices take a tentative vote right after it, and then the senior most justice in the majority assigns the opinion to whomever she or he wants. here it is unlikely roberts was in the majority because he would have probably assigned the draft opinion to himself so it is likely that alito or thomas was one of those two, and alito is
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now written this opinion, it is circulated to the other justices and there is going to be a dissent that's prepared, sometimes it's possible that the dissent can change the minds of those in the majority, but here, you know, so far, we haven't seen any indications of that from the other four, so i'm afraid to say, you know, and this is of course all, this is literally never happened in our history, but right now, it does look like that the supreme court is poised to overrule roe v. wade, and bans on abortions in the federal governmental and if they can do it for the most, probably the opinion that most americans know by name, more than anything, except maybe brown v board of education, they can do it for gay marriage or anything else that the court has guaranteed and that is a very, very scary prospect. >> former solicitor general, sir, thank you for your time and joining us on short notice. i appreciate it. senator amy klobuchar,
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democrat of minnesota, joins us now, sitting on the judiciary committee, and senator, thank you for being here with us tonight. let me get your reaction to this news, again, the headline tonight in "politico," supreme court has voted to overturn abortion rights, draft opinion shows. >> everyone's giving you the disclaimers, rachel, and we don't know what the final opinion will be. but i will say that i have predicted this for a long time. based on the court. i mean based on the hearings for these justices. i asked amy coney barrett if she thought roe v. wade was super precedent. she did not think that it was. and yet i believe, the american people are with us. so i'd like to focus here, on what is going to happen if they do issue this opinion, when all signs point to that they will. not just this leak, which is unfortunate, but also what they have said in the past. if this is issued, over 20
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states, there's a trigger, where abortion will automatically be banned. so it's no longer going to be a decision between a woman and her doctor, basically i guess ted cruz has made this decision for people. the second thing that we're going to see happen is that you're going to have individual states considering laws banning it, and meanwhile, in washington, it's on us now to try to codify roe v. wade into law. and as you know, we have two republican senators who are with us, when it comes to choice, but the question is, with the filibuster in place, which i firmly believe we should reverse, could we ever get 260? so this is what we're dealing with right now. and i cannot overemphasize how, what a change this is, what a disregard to precedent, if this is true, yes, we can be outraged, but we also have to plan. we are going into election here. we are going into the fall where
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women's rights are going to be on the ballot. and so if nothing can get done in washington, because of republican obstructionism, then the american people, and women are going to have to vote, and people who believe in choice are going to have to vote, like they never voted before, because that's the only way we can change this or we will have a packed court of -- a patch work of laws across the country. >> senator, as you know, one of the things that is most determinative of a woman's economic freedom and self determination is her ability to make her own decisions about when and if she has kids. if that becomes the government's decision, if that is no longer a decision that women are allowed to make for themselves, that fundamentally changes the economic and life and cultural prospects for every woman in the country. i wonder if that stark truth about what this does to the
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future of american womanhood and the future of the american family and the future of who we are as a culture might be enough to scare republicans in washington off, in an effort to do a nationwide ban, and as you said, those trigger laws don't require any action, they'll just go into effect in more than 20 states but we have reporting in the "washington post" today that they wans want a nationwide six week flat ban. do you think that they might be the dawn that catches the car in that case and too scared to do something that radical, do you think they would just go for testimony request. >> obviously, they are not going to be able to pass something like this in the senate right now, because democrats have the slim 50/50, we have the majority. but i think what you're going to see is a discussion of this in realtime, like we've never seen before. back alley abortions. people having to take buss to other states. people not being able to, as you said, to make their own economic decisions. right as they're coming out of this pandemic. where there's so much
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uncertainty right now, and people are just trying to get their grounding. and then we're literally stripping the women of this country of their rights. if that happen, i think you're going to see repercussions like never before. they have basically stacked the court with these judges through various procedural games that they've played in the senate, and now is the moment. and the only way that this gets decided, if this opinion gets issued as is, it's going to be state by state fights about this, with the automatic triggers going in place, in many. and then there's going to be a decision for congress. and it may be the election, for the house and the senate, it makes the election for the house and the senate more important than any we have seen in our life time when it comes to the protection of women's rights. >> governor amy klobuchar, a member of the judiciary committee, in the great state of minnesota, senator, thank you for your time this evening. i know we talked to you on short notice. thank you.
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>> great to be on, rachel. thank you. >> again, it has been a remarkable hour. this is ground-breaking reporting from politico.com. josh gerstein, alexander ward, they have obtained, i can't even, if still sounds crazy to hear the words coming out of my mouth, they obtained a draft majority opinion from the united states supreme court, this is not a ruling that has been issued but it has been drafted by conservative justice samuel alito, which overrules roe v. wade and planned parenthood v casey, full scop and completely with an exclamation point, effectively clearing the way for republican-controlled states and any future rep-can controlled congress and white house to flat out and completely ban abortion in this country, making it illegal. it would fundamentally change us as a country and fundamentally change the relationship between women and the government. it would fundamentally change the future for every girl, every girl in the country, for all of
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our daughters and granddaughters and the women that come after it. just a remarkable thing. we knew it was coming. but just to see it, even in draft form, in terms this blunt makes it feel like a different country. that's going to do it for us for now. "way too early" with jonathan lemire is up next. breaking news. "politico" drops a bombshell on the u.s. legal and political systems, with an unprecedented leak from the supreme court that roe v. wade may be on the verge of being overturned. it would reverse nearly 50 years of federal protection for abortion rights. this morning, the document that could shift history. and the leak that has rocked the supreme court. plus, we'll have the latest from ukraine. efforts to evacuate the remaining civilians from that steel plant appear to stall, amid reports that russia may soon try to annex parts of ukraine's eastern

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